Why I'm voting for Brownlee

Why I'm going to Richmond this weekend to vote at the Republican convention for John Brownlee:

1. He was the U.S. Attorney for the W.D. Va., the head lawyer for the United States of America in (the better) half of Virginia. That's more like being Attorney General than about any other law job there is. If you look'em up on Westlaw, Mr. Brownlee's name is on Westlaw hundreds of times, just like the Attorney General's name is on every case the Commonwealth appeals or defends in federal court.

2. In the Purdue Pharma case, the Pocahontas murder cases, the Bedford fundraiser case, the Dr. Knox case, among others, that office made some gutsy calls, I think - not all of them right necessarily but none based on expediency. The buck stops with the boss when decisions about high-profile cases are made - fairly or not.

3. We've debated before whether prosecutorial experience is better than not for an Attorney General. It is. It might even be better than patent litigation experience or antitrust litigation experience.

4. The newspapers were usually on his case. The newspapers are usually wrong.

5. I first met Brownlee in federal court in Big Stone Gap in 1995 - he's lived all over Virginia, as a student in Fairfax County and Lexington and Williamsburg, as a law clerk and lawyer in Abingdon and Roanoke and Northern Virginia. I doubt that Southwest Virginia will ever be much of a priority for the other fellows.

6. His wife and the girls - lovely. He must be doing something right. And - she is on a first-name basis with Johnny Wood, from her time on TV here in Bristol.

7. He is a veteran of the military, and clerking for Judge Wilson, and working for Woods Rogers, and which of these was the more demanding I couldn't say - probably clerking for Judge Wilson. I'd vote for anybody who clerked for Judge Wilson, as those ex-clerks feel the influence of their old judges, always. The Woods Rogers litigators (including alumni) I've known all share a high level of diligence and competence, and you want them with you rather than against you.

8. He's a conservative but a free thinker, with a sense of humor. I've spent a little bit of time with him, as he came to our blogger meeting in Martinsville and one of our bar meetings in Bristol when I was running those and more recently we've met at campaign events, and he speaks well and laughs easily. I rate him as a good guy, besides everything else.

9. OK, I'll add this one - he supported the effort of my client Buchanan County to get $1 million in forfeiture money from the Big Coon Dog case remitted from the United States Department of Justice.

On the next U.S. Attorney for the W.D. Va.

The Roanoke paper reported earlier that Tim Heaphy will be the U.S. Attorney for the Western District of Virginia.

As I wrote here, I knew Tim Heaphy a little back in the day. And, I've seen him a few times since, at VBA meetings and in the Abingdon courthouse, a fine fellow and excellent lawyer. He and Toby Vick got the acquittal for the defendants in the Byrd Brothers trial that I watched a bit of, December before last.

Watch what you ask for

VLW Blog cited to this opinion by Judge Moon, in McIntyre v. Aetna, wherein Judge Moon refused to grant the parties' motion to vacate a final judgment on appeal to the Fourth Circuit. Judge Moon held, consistent with any number of prior W.D. Va. cases, that if the parties burn the court's time by taking a case to final judgment, they're stuck with it. To similar effect were Judge Jones's rulings in Evans v. Mullins and U.S. Trustee v. Equipment Services.

We got Judge Glen Williams to grant vacatur in a case one time, following the steps set forth in Fobian v. Storage Tech. Corp., 164 F.3d 887 (4th Cir. 1999), but it seemed kind of a close-run thing. It is the only context I know of where the District Court gives an advisory opinion, so the Court of Appeals knows to remand the case to it to act on the motion.

On rural broadband

The Washington Post article that weighs the merits of rural broadband against the stories of Rose Hill and Lebanon cites my sister Joan.

Article on SVLAS

This article begins: "A six-year increase in legal aid for victims of domestic abuse in Southwest Virginia has been a success. The Southwest Legal Aid Society (SVLAS) greatly increased its outreach over that period, and the result has been a dramatic 35-percent decline in the number of requested protective orders; a much greater decline than seen statewide."

On the Irish literary form

Responding to one of my posts about a notorious Virginia Supreme Court case, a reader once sent me this:

There once was a couple named Zysk
Who did quite a bit more than just kiss
She sued him for herpes
He said, "I demur, please.
I think it was your *."

This limerick led to another -

From: Steve Minor
Date: Thu, 26 Aug 2004 01:39:12 -0400
Subject: Re: Zysk

Yours deserves a "punctual" reply:

There can be no worse destination
For sodomy or fornication
Than here in Virginny
For instead of sin, we
are only allowed "!"

Hello Bristol Republicans

Come and say hello to Lee Ann Necessary on Thursday, lunchtime at K.P. Duty.

And, if you were making a list of good reasons to support John Brownlee, wouldn't she be one of them?

On the connection between the Uniform Arbitration Act and the Federal Arbitration Act

Today, in A & G Coal v. Integrity Coal Sales, Chief Judge Jones of the W.D. Va. held that the parties' dispute was subject to arbitration.

His analysis began with this point: "Since the purchase orders at issue involve interstate commerce,1 the Federal Arbitration Act (“FAA”), 9 U.S.C.A. § 1-16 (West 1999 & Supp. 2008), applies."

Is that right? My answer would be, yes, but . . . . I made this more complicated in Penn Virginia v. CNX case, arguing that the state arbitration act applied unless and until it was preempted by the FAA, and that it was not where state law was more pro-arbitration even than the FAA (to overstate the point, slightly).

On being a Super Lawyer

Here the VLW posts a motion filed by Mr. Bondurant, opposing the opposing counsel's motion for continuance, and noting among other things that after all, counsel holds himself out as a "Super Lawyer."

Well, I'm a "Super Lawyer" - super enough not to buck heads with Mr. Bondurant when I can avoid it.

Oof, Supreme Court rejects FDA preemption in Wyeth case

In Wyeth v. Levine, decided today, the United States Supreme Court rejected the argument that federal law regulating the labelling of drugs does not preempt state law tort claims against drug manufacturers related to the sufficiency of the labelling of their products.

The vote was 6-3, evidently, with Roberts, Scalia, and Alito on the losing side. I think that if the vote had gone the other way, Congress would have changed the law promptly, or tried to, as in the Ledbetter case.

Still, the preemption arguments makes an awful lot of sense, when the government controls what can and cannot be said in the drug labels, down to the period and comma.

On replacing Judge Blankenship

The Wytheville paper has this article that says some Southwest Virginia legislators might take a second swipe at picking a successor to Judge Keith Blankenship, who resigned from office, leaving a vacancy on the district court for the 27th District. The article says Del. Crockett-Stark is throwing her support behind Dawn Cox, a Republican from Grayson County.

On picking judges in Virginia

Today's Washington Post has this article about a citizen group that is ticked off over the way Fairfax County Judge Gaylord L. Finch Jr. was appointed in this session of the General Assembly.

The group "is advocating term limits for judges and an overhaul of the state's process of evaluating judges. It also wants public participation in judicial selection from start to finish, hearings that are open to the public and anonymity or immunity for those who testify against sitting judges."

The cow chase case

Rex Bowman reports here on the Floyd County trial against the animal control officer who chased a cow and killed a farmer.

Another Bill Eskridge case

Today the Virginia Supreme Court decided in Johnston Memorial Hospital v. Bazemore that the plaintiff in a lawsuit that is a legal nullity (because the plaintiff had not qualified as personal representative to file a wrongful death case) cannot take a nonsuit.

One would imagine that a lawsuit that is a legal nullity cannot be res judicata on the merits, but I suppose they wanted the nonsuit to toll the statute of limitations.

Well done, Rip Sullivan

In Remora Investments, LLC v. Orr, the Virginia Supreme Court in an opinion by Justice Lemons affirmed the decision by the Fairfax Circuit Court that one member of a limited liability company lacks standing to sue another member or manager of the LLC for breach of fiduciary duty, but instead the duty is owed to the LLC itself.

I think that Rip Sullivan was on the winning side here, and I was rooting for him (as of now, until I'm on the other side of this issue).

Well done, more or less

In Seguin v. Northrop Grumman, the Virginia Supreme Court in an opinion by Justice Koontz held that an order compelling arbitration is not appealable, notwithstanding loose talk in a prior opinion in the case of Amchem Products v. Asbestos Cases Plaintiffs, 264 Va. 89, 563 S.E.2d 739 (2002).

I made this argument in opposition to a petition before the Virginia Supreme Court, but the Court simply denied the petition in my case, finding no error in the ruling on arbitrability. So, I know that the Virginia arbitration act is a uniform act, and there are dozens of cases interpreting its provisions in other states, and yet in Seguin the Virginia Supreme Court chose to ignore this aspect, because ... that's the way they roll. There will never be a dispute over the Virginia Supreme Court citing foreign law, because they won't do it - they don't like to cite any non-Virginia law, even when it would make life better for Virginia lawyers, as when uniform acts are applied uniformly.

In Virginia, as in Arizona, "[t]he right to appeal is not absolute but exists only by statute." Southern California Edison Co. v. Peabody Western Coal Co., 194 Ariz. 47, 52, 977 P.2d 769, 774 (1999). Arizona’s Uniform Arbitration Act “expressly permits appeal from an order denying arbitration but is silent as to an order compelling arbitration.” Id. (citing A.R.S. § 12-2101.01). From the limited list of appealable orders, "our legislature has made its intent clear that most interlocutory orders, including those compelling arbitration, are not appealable." Id. The Court concluded that "even in an independent proceeding in which the question of arbitrability has been raised, an order compelling arbitration will always adjudicate 'fewer than all of the claims.'" Id. This rule is "good policy in an arbitration case" because it would "support the purposes of that procedure - prompt, efficient, and inexpensive dispute resolution," avoiding "a multitude of appeals . . . when arbitration might determine all issues to the parties' satisfaction." Id. at 52-53, 977 P.2d at 774-75.

Like the Arizona court, a court in Kansas cited the prefatory comment to the Uniform Arbitration Act, which says: "The section on Appeals is intended to remove doubts as to what orders are appealable and to limit appeals prior to judgment to those instances where the element of finality is present." National Educ. Association-Topeka v. Unified School Dist. No. 501, 260 Kan. 838, 841, 925 P.2d 835, 837-38 (1996) (quoting Unif. Arbitration Act, 7 U.L.A. 2 (1985)). See Southern California Edison, 194 Ariz. at 52, 977 P.2d at 774 ("our legislature has made its intent clear that most interlocutory orders, including those compelling arbitration, are not appealable. This, too, was the intent of the UAA drafters.") (citing the same Prefatory Note.) In the Kansas case, the Court went further, adding:

The chairman of the committee that drafted the uniform act explained the rationale for making certain orders, but not others, appealable: "Appeals likewise are commonly neglected in arbitration statutes. Under the new act, the appealable orders are specifically designated and are confined to those final in nature, such as orders denying motions to compel arbitration or granting motions to stay arbitration. Orders directing, or refusing to stay, arbitration are not appealable but the point at issue can be raised on appeal from an order confirming the award should one be rendered. Appeals are permitted also from the judgment or decree rendered on an award." Pirsig, The New Uniform Arbitration Act, 11 Bus. Law, April 1956, at 44, 51. (Emphasis added.)

National Educ. Association-Topeka, 260 Kan. at 841-842, 925 P.2d at 38 (citation omitted).

You'd think that Virginia Supreme Court would embrace the idea that the outcome in this case is justified in part by the purpose, structure, and drafting history of the Uniform Arbitration Act, or any uniform act.

Tennessee Supreme Court in Virginia

Today's TBAtoday says:

"Next Thursday, March 5, the Tennessee Supreme Court will hold a public meeting in Bristol on legal needs and access to justice issues in east and northeast Tennessee. The meeting will be moderated by Supreme Court Justice Gary Wade and feature a panel with state Representative Jon Lundberg, 2nd Judicial District Chancellor E.G. Moody, Sullivan County Circuit Court Clerk Tommy Kerns, private attorneys and representatives from Legal Aid of East Tennessee and the Oak Ridge office of the Legal Aid Society. The meeting begins at 3 p.m. at the Bristol Public Library, 701 Goode Street, Bristol, Va. 24201."

Funniest thing I heard said about me in 2009

Someone told me at the VBA meeting in Williamsburg that someone else had said this: "Steve Minor . . . is an acquired taste."

On the USDA broadband grant program

Southwest Virginia through LENOWISCO and other entities has been a prime beneficiary of the grant program mostly bashed in this Washington Post article, which does cite the example of Tannersville, Virginia, here in the Ninth District. The Tannersville grant was written by my sister, who also wrote the grant for Rose Hill, where she lives and works.

Speaking of Joan, here is where she uploaded a video to her blog, which she made with the Christmas present she got from her brother.

On court-packing, stacking, etc.

The Post has this on too-smart law professors thinking up ways to get the Supreme Court to do what they want.

People who are aggrieved by the Supreme Court always think of ways to change it, not because they are high-minded but because they want to get different outcomes. And, everyone knows this, and so the proposals go nowhere - now as when Jefferson was president and Marshall the Chief Justice.